IHL Flashcards
(31 cards)
What does International humanitarian law (IHL) refer to?
IHL (or the laws of armed conflict) refers to the body of law which imposes rules on the conduct of armed conflict to mitigate its effects
What is IHL based on (legally)?
A mix of customary international law and treaty-based law, though the latter is the dominant one today
What are breaches of IHL considered?
War crimes
Why has IHL been controversial?
IHL has been controversial because it seeks to balance military necessity with humanity, but in the process humanizes warfare
- What you need to be able to do as a commanding officer vs humanity
- Makes was seem respectable
What is IHL the result of a merger of?
IHL is the result of the merger of the law of The Hague and the law of Geneva
What is law of The Hague?
Traditionally known as the laws of war, these regulate the conduct of war proper (definitions of combatants, conduct of military operations, use of certain types of weapons)
What is law of Geneva?
Regulates the protection and treatment of those not taking part (civilians) or unable to take part (wounded, POWs/prisoners of war) in the fighting
History of IHL
- Though its modern iteration dates from the 19th century, many societies have historically had rules concerning the treatment of civilians and wounded, and limits on means of war
- Some of these traditional rules were embodied in treaties later, while others would constitute war crimes today (eg. coup de grace)
- The development of these rules thus tracks not only changing ideas of morality, but also technological changes
The Geneva Conventions
- Currently consists of four conventions concluded between 1864 and 1949 + three additional protocols
- Brainchild of Swiss businessman Henri Dunant in the aftermath of Solferino
– 1864 very gruesome war where wounded were left on the battlefield to die, Dunant though this was an offense to Christendom and needed it changed - Every country is party to some of it, but not every country is party to all of it
– Additional protocols especially low membership (comparatively)
International Committee of the Red Cross facts
- International NGO which plays a unique role in IHL as the watchdog of the Geneva Conventions
- Private body established under Swiss law - and its members have to be Swiss
- Each country/territory has an affiliate national Red Cross/Crescent/Crystal committee
– National affiliates of the ICRC can be more political than the Red Cross - Duties have ranged from POW tracked to protecting the Red Cross symbol
- Neutrality of ICRC has been controversial
– eg. ICRC visited a Nazi concentration camp which had been decorated to show that the camps weren’t that bad and the ICRC wrote a report saying the camps were fine
The Hague Conventions of 1899 and 1907 introduced what conventions + declarations?
- Three conventions + three declarations (1899)
- Fourteen conventions and declarations (1907)
- Not all of them concerned with IHL - two concern the PCA (eg.)
What is the relevance of the Hague Conventions today? How have they been amended?
- Many of the Hague Conventions either expired (IV, 1 of 1899 on aerial bombardment) or have been superseded (IV, 2 of 1899 on gas, which was ignored anyways)
- Convention II of 1899 (Convention with respect to the Law and Customs of War on Land) is perhaps the most important one today
- To the above can be added a number of treaties, such as the Chemical Weapons Convention and the Ottawa Convention
– US and Russia haven’t banned anti-personnel landmines - Much of the content of these treaties is also mirrored in customary international law, and are thus binding for non-parties
What is unique about Common Articles 2 and 3 of the Geneva convention?
If a country is a signatory to any of the conventions they have to abide by these two articles (ie. all countries)
Common Article 2 of the Geneva Convention
Conventions apply to any inter-state war, declared or not, including war of national liberation (Protocol I), with the exception of when a belligerent is neither signatory to the Convention nor accepts to abide by them - reciprocity no longer the principle
Common Article 3 of the Geneva Convention
Provides for a limited set of protection to those taking no active part in hostilities when the hostilities are not of an international character
What groups of people are protected under the Geneva Protocols?
- (Hors combat) Wounded and sick military personnel (First and Second Geneva Protocols)
- Prisoners of war (Third Geneva Protocol)
- Civilians who are protected persons (Fourth Geneva Protocol)
Hors combat / Wounded and sick military personnel protection under Geneva Protocols
First and Second Geneva Protocols
- “Shall be respected and protected in all circumstances
- To be treated humanely, on a non-discriminatory basis
- Cannot be hurt, tortured, killed, left without medical care, etc.
- Details have to be recorded and transmitted to the other side
Medical establishments must not be attacked, and status quo to be indicated by distinctive symbol
Who are prisoners of war according to the Geneva Protocols
- Tied to the definition of combatant status - have to be under effective command structure and distinguish themselves from civilians
– Traditionally uniform, nowadays distinctive insignia - If an illegal combatant, enjoys the minimum protection common to all but not the protection given to POWs
How must POWs be treated according to the Geneva Protocol(s)?
Third Geneva Protocol
- Essentially POWs have to be kept alive, in good health, and in dignity
- POWs cannot be mistreated, tortured, humiliated, etc.
- They can be required to give basic information (name, rank, service number) but nothing else
- Can be tried for war crimes or crimes against civil law and punished for offences against military discipline
– Both military law of country they’re in and country they’re from
- Have to be released and repatriated after the end of hostilities
Civilians who are protected persons under Geneva Protocols
Fourth Geneva Protocol
- “In the hands of a party to the conflict or occupying power of which they are not nationals” - does not apply to third party nationals whose country is not at war with the other party
- All the essential protections, plus prohibition on eg. deportations, forced enlistment, destruction of property
- Also lays rule for military occupations generally
Key ideas in the conduct of hostilities (principles)
- Civilians
- Principle of distinction
- Indiscriminate attacks
- Principle of proportionality
- Principle of military necessity
What is said about civilians in the conduct of hostilities?
Civilians have to be protected from the effect of hostilities
What is the principle of distinction in the conduct of hostilities?
Additional Protocol I
- Parties to the conflict have to distinguish between civilians and combatants, and between civilian and military objectives, at all times
What is said about indiscriminate attacks in the conduct of hostilities?
Indiscriminate attacks are prohibited, as are terror attacks and attacks on civilians (if they are specifically target, that is)
- However, the killing of civilians in and of itself is not illegal, if they arise as a side-effect/consequence of an attack on a legitimate military target
